Mixed Messaging from DOJ at HCCA Conference for Second Straight Year

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Original story posted on: November 14, 2018

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Federal officials seem wary about their words and their dissemination.

At the Health Care Compliance Association’s (HCCA’s) fourth annual Healthcare Enforcement Compliance Conference, top U.S. Department of Justice (DOJ) officials provided an update on current developments related to criminal and civil fraud investigations. 

While a future article will focus on some of the highlights, this article will focus on process, because before making any remarks, the first official to speak indicated that their comments were “not for attribution.” The official then expressed concern about how comments by DOJ officials at last year’s conference were reported to the public “before lunch” on the day they were made. The DOJ seemed to be expressing a concern that it considered it to be inappropriate for comments made by the DOJ at the HCCA conference to be reported publicly.

Here is a recap of what occurred last year. While the official did not mention Monitor Mondays and RACmonitor by name, it was a story broadcast on Monitor Mondays and published in RACmonitor that seemed to trigger the concern. At that time, an official explained that the DOJ would consider moving to dismiss False Claims Act cases if the government determined that the complaint was meritless. After the RACmonitor article was published, the DOJ press office asked for a correction, because the statements at the conference were not an official policy statement, and it was asserted that there had been no change in DOJ policy, because the DOJ was always willing to intervene to dismiss meritless claims.

Then, in January 2018, a memo by Michael Granston, director of the Commercial Litigation Branch of the Fraud Section in the Civil Division of the U.S. Department of Justice, became public. That memo described the policy outlined at the conference.

So, what is the DOJ’s position on reporting on the events of the conference? And should attendees of the conference respect that position? Let’s examine both of those questions. First, the way the DOJ’s position was described was that the comments were “not for attribution.” At the conference, I asked for clarification, noting that the conference is a public forum, and presumably, the reason DOJ officials were generously providing their time by speaking was to provide guidance to both the public and industry. Unless attendees are able to recount what occurs at the meeting, it would be impossible to disseminate this important and useful information. The response was that the Department expected the information to be disseminated, but that it wasn’t “official” and, again, “wasn’t for attribution.”

Personally, I am very grateful that the DOJ officials are willing to come present at conferences. These professionals are quite busy, and they certainly are not obligated to take time out of their day to participate. I don’t want to do anything that would result in the officials refusing to attend this conference or other public gatherings. But I am also shocked at the idea that there would be any attempt to limit the dissemination of what is said at the meeting. People who are not sitting in the room are entitled to exactly the same information that attendees received, aren’t they? Statements by the DOJ at a public gathering should be public. It shouldn’t be possible for certain groups to have inside access to information from the DOJ. 

I have received two different comments about the DOJ position. I have been told both that statements made by officials at the conference should be described as “a statement by a DOJ official” without naming that official, and that the statements should be reported by naming the particular official, but emphasizing that their remarks were made in that person’s individual capacity, so it should be attributed to the person with a caveat that the statement is not an official policy position of the DOJ. We have asked the DOJ press office for clarification on their position and offered to accept comments on this article. That request was made Tuesday evening, Nov. 6, right before the President demanded the Attorney General’s resignation. So it is understandable that the office may not have had time to focus on this issue. My hope is that when I do hear from the DOJ, the clarification will be “we encourage you to report on the statements at the conference, but ask that you note in the article that statements at the conference are not official policy pronouncements.” That is, of course, true. 

Regardless of the DOJ’s position, in a free an open society, it is important to be able to report on statements made by government officials. While it is reasonable for such officials to be able to make comments to reporters off the record, when they are made in a public forum, it is difficult to see a rationale for agreeing to keep them off the record. As a result, we intend to continue reporting on the statements made at conferences.

 

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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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